Carol A. Gennaro v. Department of the Air Force

UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
CAROL A. GENNARO, DOCKET NUMBER
Appellant, DE-0752-13-1662-I-1
v.
DEPARTMENT OF THE AIR FORCE, DATE: February 10, 2016
Agency.
THIS FINAL ORDER IS NONPRECEDENTIAL 1
Sterling W. Hiibschman, U.S. Air Force Academy, Colorado, for the
appellant.
Larry Pruitt, Joint Base Andrews, Maryland, for the agency.
BEFORE
Susan Tsui Grundmann, Chairman
Mark A. Robbins, Member
FINAL ORDER
¶1 The appellant has filed a petition for review of the initial decision, which
affirmed the agency’s furlough action. Generally, we grant petitions such as this
one only when: the initial decision contains erroneous findings of material fact;
the initial decision is based on an erroneous interpretation of statute or regulation
1
A nonprecedential order is one that the Board has determined does not add
significantly to the body of MSPB case law. Parties may cite nonprecedential orders,
but such orders have no precedential value; the Board and administrative judges are not
required to follow or distinguish them in any future decisions. In contrast, a
precedential decision issued as an Opinion and Order has been identified by the Board
as significantly contributing to the Board’s case law. See 5 C.F.R. § 1201.117(c).
2
or the erroneous application of the law to the facts of the case; the administrative
judge’s rulings during either the course of the appeal or the initial decision were
not consistent with required procedures or involved an abuse of discretion, and
the resulting error affected the outcome of the case; or new and material evidence
or legal argument is available that, despite the petitioner’s due diligence, was not
available when the record closed. See title 5 of the Code of Federal Regulations,
section 1201.115 (5 C.F.R. § 1201.115). After fully considering the filings in this
appeal, and based on the following points and authorities, we conclude that the
petitioner has not established any basis under section 1201.115 for granting the
petition for review. Therefore, we DENY the petition for review and AFFIRM
the initial decision, which is now the Board’s final decision. 5 C.F.R.
§ 1201.113(b).
¶2 The appellant was one of a group of employees from Local 1867, American
Federation of Government Employees, whose furlough appeals were consolidated
by the administrative judge. AF Academy v. Department of the Air Force, MSPB
Docket No. DE-0752-14-0079-I-1, Consolidation Appeal File (CAF),
Tab 1; 5 C.F.R. § 1201.36(b). These employees worked in various civilian
capacities at the U.S. Air Force Academy, near Colorado Springs, Colorado, and
they were furloughed for up to 11 work days during the 2013 fiscal year pursuant
to section 251A of the Balanced Budget and Emergency Deficit Control Act, i.e.,
sequestration. 2 See 2 U.S.C. § 901a; CAF, Tab 6 at 9-12. The appellant was
furloughed for 6 days. Initial Appeal File (IAF), Tab 2 at 4-17. Either through
their participation in the telephonic conferences with the administrative judge, or
by their inaction following the first of such conferences, the appellant and her
colleagues waived their hearing rights and consented for the administrative judge
to render a finding on the written record. CAF, Tabs 4, 7. The appellant
2
For agency documentation regarding the sequestration and furloughs during the 2013
fiscal year, see the Complete Department of the Air Force Administrative Record for
FY2013 Furlough Appeals, available at www.mspb.gov/furloughappeals.
3
participated in the first teleconference, CAF, Tab 4, and she submitted a separate
pleading setting forth her argument that the furlough violated Article 1, Section 8,
Clause 1, of the U.S. Constitution, which gives Congress the power to provide for
the common defense and general welfare of the United States. CAF, Tab 8.
¶3 In the initial decision that followed, the administrative judge found that the
agency established that the furlough was a reasonable management solution to a
decrease in the agency budget and that the agency imposed the furlough
uniformly and consistently regarding the appellant and her colleagues. CAF,
Tab 9, Initial Decision (ID) at 7-9. The administrative judge explained that the
Board lacked the authority to look behind the agency’s decision to remedy its
budget deficits by furloughing employees and that the Board likewise lacked the
authority to find whether the statutes and regulations empowering the agency to
furlough employees are unconstitutional. Id. The administrative judge also
explained that the Board has rejected any contention that the disparity between
subjecting the appellant and her colleagues to a furlough resulting from
sequestration and finding that they were “essential” employees excepted from the
furlough caused by the Government shutdown in October 2013, was
unconstitutional. ID at 8.
¶4 On review, the appellant asks the Board to consider:
that all federal employees were told to disobey the statutes of the
Constitution and that the administrative law judge erred in
concluding that the furloughs and sequestration actions were legal
because the agency had the authority to decide it’s [sic] own budget
and forced civilians to disobey the Constitutional law[s] that regulate
the citizens of the United States. The “right-to-disobey” provision at
section 5 U.S.C. §§ 2302(b)(8) and 2302(b)(9)(D) as they apply to
violations of statute, in addition to violations of Oath of Office
provisions under 5 U.S. Code § 1204 (f)(2)(a, b), and § 1204 (f)(3),
§ 1204 (f)(4), 28 U.S. Code § 518 and whether or not the furloughs
and sequestrations were in fact undertaken in order to promote the
[efficiency of the service] versus violating Constitutionally mandated
budget requirements to ensure “appropriation not to exceed two-
years” for payment of those in the employment of the United States
4
(military, active duty, reserves, federal civil service employees,
contractors and retirees all inclusive).
PFR File, Tab 1 at 8-9.
¶5 The administrative judge addressed whether the Board had the authority to
determine the constitutionality of statutes empowering agencies to furlough
employees, and he reiterated our longstanding holding that we lack such
authority. ID at 8-9; see Special Counsel v. Bianchi, 57 M.S.P.R. 627, 633 (1993)
(determining that, as an administrative agency, the Board has no authority to
adjudicate the constitutionality of a statute). The administrative judge did not
explicitly address the appellant’s assertion that the furlough caused her to violate
her oath of office; however, we note that her argument regarding the oath of
office is predicated upon her contention that the furlough itself violates Article 1,
Section 8, Clause 1 of the U.S. Constitution. IAF, Tab 8 at 1-4; see CAF, Tab 5.
As stated above, the initial decision explained that the Board cannot adjudicate
the constitutionality of the authorities upon which the furlough was based, and in
any event, the appellant has not shown how obedience to a lawful order given by
her agency might violate her oath of office. 3
¶6 To the extent that the appellant may be arguing that she was denied a
hearing and an opportunity to examine witnesses, we point out that she
participated in the first prehearing conference and waived her right to a hearing
with the other appellants. CAF, Tabs 4, 7. She also took the opportunity to
submit a separate pleading to the record on the constitutional issues. CAF, Tab 8.
She cannot complain that she lacked the opportunity to be heard. In any event,
the agency has shown that the sequestration furlough promoted the efficiency of
the service. ID at 9. The appellant has offered no new and material evidence
supporting an argument that the administrative judge erred, nor has she shown
3
The petition for review also cites authorities regarding freedom of speech and the right
to petition the Government for redress of grievances under the First Amendment to the
Constitution, as well as various other authorities. PFR File, Tab 1 at 8-18. The
appellant has not addressed how these authorities relate to her appeal.
5
that the administrative judge relied upon an erroneous interpretation of a statute,
abused his discretion, or made erroneous findings of fact. See 5 C.F.R.
§ 1201.115. Accordingly, we deny her petition for review and affirm the
initial decision.
NOTICE TO THE APPELLANT REGARDING
YOUR FURTHER REVIEW RIGHTS
You have the right to request review of this final decision by the U.S. Court
of Appeals for the Federal Circuit. You must submit your request to the court at
the following address:
United States Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, DC 20439
The court must receive your request for review no later than 60 calendar
days after the date of this order. See 5 U.S.C. § 7703(b)(1)(A) (as rev. eff.
Dec. 27, 2012). If you choose to file, be very careful to file on time. The court
has held that normally it does not have the authority to waive this statutory
deadline and that filings that do not comply with the deadline must be dismissed.
See Pinat v. Office of Personnel Management, 931 F.2d 1544 (Fed. Cir. 1991).
If you need further information about your right to appeal this decision to
court, you should refer to the Federal law that gives you this right. It is found in
title 5 of the U.S. Code, section 7703 (5 U.S.C. § 7703) (as rev. eff. Dec. 27,
2012). You may read this law as well as other sections of the U.S. Code, at our
website, http://www.mspb.gov/appeals/uscode.htm. Additional information is
available at the court’s website, www.cafc.uscourts.gov. Of particular relevance
is the court’s “Guide for Pro Se Petitioners and Appellants,” which is contained
within the court’s Rules of Practice, and Forms 5, 6, and 11.
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website
6
at http://www.mspb.gov/probono for information regarding pro bono
representation for Merit Systems Protection Board appellants before the Federal
Circuit. The Merit Systems Protection Board neither endorses the services
provided by any attorney nor warrants that any attorney will accept representation
in a given case.
FOR THE BOARD: ______________________________
William D. Spencer
Clerk of the Board
Washington, D.C.